NLJ Op-Ed Piece Addresses Archaic Lawyer Advertising Rules

OPINIONArchaic rules hobble attorneysBusinesspeople and consumers would laugh at advertising limits on lawyers.

By Micah U. Buchdahl

Published in the National Law Journal - September 7, 2009

As the economy sputters and every morning's inbox is greeted with news of law firm layoffs and "out of business" signs, it highlights an obstacle to the business of law that is unique to this profession — often-stringent state bar rules of professional conduct related to advertising and marketing. For the past 30 years, state bars have taken a roller coaster approach to regulating lawyer advertising. However, the rules continue to block entrepreneurial lawyers and firms from soliciting and acquiring business at a time when "anything (ethical) to survive" should be the mantra.

Consumers and businesspeople alike would probably laugh at the regulations that are in place nationwide. In what essentially amounts to a federalist debate, attempts at national uniformity by entities such as the American Bar Association are met with resistance by the real owners of power, those who regulate all of our law licenses at the state level.

There is a laundry list of requirements in some states that range from preapproval filings of all lawyer ads to clumsy disclaimers. Enforcement arms of the state bars range from near-fanatical oversight to general uninterest. In a multi¬jurisdictional practice world, firms need to monitor changing rules in dozens of states, with the result being that practice capabilities and competitiveness are hampered in a major market because of the need to comply in a small "satellite office" state. For example, a 500-lawyer firm with 495 attorneys in Washington, D.C., three in Florida and two in Connecticut would have to comply with the two latter-named states, even if the practice there was limited to a particular client or practice group. In a world dominated by online communication, this is more troubling than it might appear.

Attempts at heavy-handedness meet with mixed results in states such as Florida, New York, Connecticut, Louisiana, Missouri and New Jersey (to name a few). In recent years, some of the world's largest and most prestigious corporate law firms were forced to either scrap or change the way they sent out informational client alerts, due to the implied need to slap the phrase "ATTORNEY ADVERTISING" on the subject line of an e-mail. Pardon me, but I highly doubt the recipient, perhaps the general counsel of General Electric Co. or Johnson & Johnson, is hornswaggled (a legal term of art) by the trickery of a tax law update from Sullivan & Cromwell. I think the "this is not legal advice" disclaimer on the bottom probably would suffice.

Historically, through a slew of ethics opinions and court challenges, nobody has ever been able to show any data that suggest people have been harmed by lawyer advertising — accurate, misleading or otherwise. The concept that a loud and splashy TV ad for a personal injury firm, a law firm-sponsored "divorce seminar" at the Holiday Inn, or simply a brand-identity print ad in an industry publication involves varying degrees of trickery is simply unsubstantiated. And the underlying anti-advertising critics at many state levels are simply attorneys who just do not like it — and get on a small committee that can do something about it. Such is the way that law firms and the bars that regulate them operate.

Listen — (some) lawyers are smart people. We specialize (a word you better not use in your lawyer advertising…lots of words are violations) in the art of finding loopholes in laws, statutes and cases. The result is that the controls do not work anyway. Those harmed are often the average Joe or Joan Attorney just trying to promote his or her practice. A review of rules and opinions shows that those on the regulating committees are often out of touch and far removed from the realities of business development. Even in traditional advertising circles, trying to make sense of Facebook, Twitter, blogs and search engines can be a challenge. For old-tyme practitioners, it is just ridiculous. The opinions often show a lack of understanding. They are still stuck on Yellow Pages advertising (now that is archaic). The results are often laughable. Marketing methods continue to evolve — these folks are way behind the curve.

What exactly am I advocating here? Let ambulance-chasing lawyers run amok? Isn't that the real image and concern behind these arcane rules? Open the floodgates with distasteful and unprofessional billboards, Web sites and commercials? No — just let law firms market the way nearly every other business does. There are state and federal regulations that address consumer fraud and misleading claims. Let them deal with it. Many lawyers and law firms are trying to survive and prosper. The very people who should be helping them should start thinking about not being obstacles to their ability to earn a living. (Some) people are smart. They know the difference between a commercial and the news. I think they can figure it out.